IMCO RECYCLING INC. AMENDED AND RESTATED DON V. INGRAM
EXHIBIT 10.3
AMENDED AND RESTATED
XXX X. XXXXXX
This AMENDED AND RESTATED RESTRICTED STOCK AWARD AGREEMENT (the “Agreement”), originally entered
into effective as of the Date of Grant, is amended and restated effective as of October 16, 2002, by and between Xxx X. Xxxxxx (the “Executive”) and IMCO Recycling Inc., a Delaware corporation (“IMCO”).
WITNESSETH THAT:
WHEREAS, IMCO Management Partnership L.P. (the “Company”), IMCO and the Executive are parties to that certain Employment Agreement dated effective as of September 1, 2000 as amended
December 18, 2001 (the “Employment Agreement”), whereby IMCO agreed to grant an award to the Executive of shares of restricted common stock of IMCO (“Restricted Stock”); and
WHEREAS, to evidence such award, the parties entered into that certain Restricted Stock Award Agreement dated effective as of October 12, 2000 (the
“Original Agreement”); and
WHEREAS, the parties desire to amend and restate the terms of such
Original Agreement pursuant to and in accordance with the terms and conditions hereof; and
WHEREAS, the
parties intend that except as expressly stated herein or amended hereby, all rights and obligations of the parties under the Original Agreement shall continue to exist and be evidenced by this Agreement;
NOW, THEREFORE, IT IS AGREED, by and between IMCO and the Executive, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged and confessed, that the Original Agreement be and it hereby is amended and restated in its entirety as follows:
1. Terms of Award. The following terms used in this Agreement shall have the meanings set forth in this paragraph 1:
The “Date of Grant” is October 12, 2000.
The number of shares of “Restricted Stock” awarded under this Agreement is 400,000 shares.
The “Restriction Period” is the period commencing on the Date of Grant and ending on October 12, 2007, which date is the seventh anniversary of the Date of Grant.
“Termination of Service” shall be deemed to occur on the Termination Date. In the event that the Employment Agreement has
expired or is no longer in effect, then the Termination Date for purposes of this Agreement shall mean the first day on which the Executive is no
longer employed by IMCO or the Company or any other company in the IMCO Group; provided that the Executive’s
employment shall not be considered to be terminated while the Executive is on a leave of absence approved by the Executive’s employer.
Other capitalized terms appearing in this Agreement which are not otherwise defined in this Agreement shall have the respective terms assigned to them as set forth in the Employment Agreement.
2. Award. Effective the Date of Grant, the Executive is granted by IMCO the number of
shares of Restricted Stock set forth in paragraph 1 (the “Award”). Such grant of shares of Restricted Stock shall be only made from shares of authorized and issued shares of IMCO common stock reacquired by IMCO and held in IMCO’s
treasury, and not from authorized and unissued shares.
3. Dividends and Voting
Rights. The Executive shall not be entitled to receive any dividends that become payable during the Restriction Period with respect to shares of Restricted Stock, and no dividends shall accrue with respect thereto;
provided, however, that dividends shall be payable to or for the benefit of the Executive with respect to record dates for such dividends occurring after the date of vesting of such shares of Restricted Stock. The Executive shall be entitled
to vote the shares of Restricted Stock during the Restriction Period to the same extent as would have been applicable to the Executive if the Executive was then vested in the shares; provided, however, that the Executive shall not be entitled
to vote the shares with respect to record dates occurring prior to the Date of Grant, or with respect to record dates occurring on or after the date (if any) on which the Executive has forfeited the Restricted Stock.
4. Deposit of Shares of Restricted Stock.Each certificate issued in respect of shares of Restricted Stock
granted under this Agreement shall be registered in the name of the Executive but shall remain in the custody of IMCO or the Company until all restrictions on such Restricted Stock have lapsed and the Restriction Period for such shares of Restricted
Stock has expired.
5. Transfer and Forfeiture of
Shares. Subject to the terms hereof, shares of Restricted Stock may not be sold, assigned, transferred, pledged or otherwise encumbered until the expiration of the Restriction Period. Except as otherwise expressly provided
in paragraph 6, if the Termination of Service occurs prior to the end of the Restriction Period, the Executive shall forfeit the shares of Restricted Stock effective as of the date of the Termination of Service.
6. Vesting. If there has not been a Termination of Service during the Restriction
Period, then upon the expiration of the Restriction Period, the Executive shall become 100% vested in the shares of Restricted Stock awarded hereunder, and shall own those shares free of all restrictions otherwise imposed by this Agreement. In
addition, the Executive shall also become fully vested in all of the shares of Restricted Stock awarded hereunder prior to the end of the Restriction Period, and become owner of such shares free of all restrictions otherwise imposed by this
Agreement, as follows:
(a) The Executive shall become fully vested in all of the
shares of Restricted Stock awarded hereunder as of the date of the Executive’s Termination of Service, if such Termination of Service occurs by reason of the Executive’s death or Total Disability; or
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(b) The Executive shall become fully vested in all of
the shares of Restricted Stock awarded hereunder as of the date of the Termination of Service, if the Executive is Terminated without Cause or the Executive Resigns for Good Reason; or
(c) The Executive shall become fully vested in all of the shares of Restricted Stock awarded hereunder upon the occurrence of a Change in
Control.
7. IMCO’s Successor. As used herein, the term
“IMCO” shall mean IMCO as hereinbefore defined, and “IMCO’s Successor” shall mean any successor to IMCO’s business or assets as contemplated by paragraph 8 below, that executes and delivers an agreement to assume
IMCO’s obligations under this Agreement or which otherwise becomes bound by all of the terms and provisions hereof by operation of law.
8. Heirs and Successors. This Agreement shall be binding upon, and inure to the benefit of, IMCO and its successors and assigns, and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise, all or substantially all of IMCO’s assets and business. Any benefits distributable to the Executive under this Agreement that are not distributed at the time of the
Executive’s death shall be distributed at the time and in the form determined in accordance with the provisions of this Agreement and the Employment Agreement to the beneficiary designated by the Executive in writing filed with the Company or
IMCO in such form and at such time as the Company or IMCO shall require. In the event the deceased Executive has failed to designate a beneficiary, or if the designated beneficiary of the deceased Executive dies before the Executive or before
complete distribution of benefits due under this Agreement, the securities or amounts to be distributed under this Agreement shall be distributed to the legal representative or representatives of the estate of the last to die of the Executive and
the beneficiary.
9. Administration. The authority to manage
and control the administration of this Agreement shall be vested in the Compensation Committee of the Board of Directors.
10. Amendment. This Agreement may be amended only by written agreement of the Executive and IMCO, without the consent of any other person.
11. Adjustments. Except as otherwise expressly provided in this Agreement, the
issuance by IMCO (or IMCO’s Successor) of shares of its capital stock of any class, or securities convertible into shares of capital stock of any class, either in connection with direct sale or upon the exercise of rights, options, or warrants
to subscribe therefor, or upon conversion of shares or obligations of IMCO or IMCO’s Successor convertible into such shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number of
outstanding shares of Restricted Stock.
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12. Recapitalization, Merger and Consolidation.
(a) The existence of this Agreement and the Award granted hereunder shall not
affect in any way the right or power of IMCO or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations, or other changes in IMCO’s capital structure and its business, or any merger or consolidation of
IMCO, or any issue of bonds, debentures, preferred or preference stocks ranking prior to or otherwise affecting the Common Stock or the rights thereof (or any rights, options, or warrants to purchase same), or the dissolution or liquidation of IMCO
or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
(b) Subject to any required action by the stockholders (and except as otherwise provided in sub-paragraph (c) below), if IMCO shall be the
surviving or resulting corporation in any merger, consolidation or share exchange, the Award granted hereunder shall pertain to and apply to the securities or rights (including cash, property, or assets) to which a holder of the number of shares of
Common Stock subject to the Award would have been entitled.
(c) In the event of any
merger, consolidation or share exchange pursuant to which IMCO is not the surviving or resulting corporation, (or IMCO is the surviving entity but the Common Stock of IMCO is exchanged for cash, property, securities or other consideration of or from
any other entity) there shall be substituted for each share of Common Stock subject to this Award, (i) that number of shares of each class of stock or other securities or that amount of cash, property, or assets of the surviving, resulting or
consolidated entity which were distributed or distributable to the stockholders of IMCO in respect of each share of Common Stock held by them, or (ii) such number of shares of stock, or other securities, or such amount of cash, property or assets
(or any combination thereof) as proportionate in value as reasonably practicable to the consideration distributed or distributable to the stockholders of IMCO with respect to each share of Common Stock held by them.
(d) In case IMCO shall, at any time while this Award is outstanding and the Restriction Period remains
unexpired, (i) sell all or substantially all of its property, or (ii) dissolve, liquidate, or wind up its affairs, then the Executive shall be thereafter entitled to receive, in lieu of each share of Common Stock which the Executive would have been
entitled to receive under the Award, the same kind and amount of any securities or assets as may be issuable, distributable, or payable upon any such sale, dissolution, liquidation, or winding up with respect to each share of Common Stock of IMCO.
13. Investment Intent. IMCO may require that there be
presented to and filed with it such evidence as it may deem necessary to establish that the shares of Common Stock to be transferred to the Executive are being acquired for investment purposes only and not with a view to their resale or
distribution.
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14. No Right to Continued
Employment. This Agreement shall not confer upon the Executive any right with respect to continuance of employment by the Company or any other company in the IMCO Group (as that term is defined in the Employment
Agreement).
15. Compliance With Other Laws and
Regulations. The grant of the Award and the obligation of IMCO to deliver shares of Common Stock hereunder, shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any
government or regulatory agency as may be required. In the event it is determined that any such grant, issuance or delivery for any reason violates any law, rule or regulation, then the Award shall thereupon automatically convert to a phantom
restricted stock award or other similar equivalent award, having a value substantially equivalent to the value of the Award, and payable in cash instead of Common Stock. Such award will be exercisable at any time the Executive may elect on or after
the date such award becomes fully vested in accordance with the vesting terms applicable to the Award granted hereunder (but at any rate not more than three years after full vesting occurs.)
16. Tax Requirements. IMCO or the Company shall have the right to deduct any Federal, state, or local taxes required by
law to be withheld with respect to the Award hereunder. The Executive receiving shares of Common Stock issued under this Agreement shall be required to pay IMCO or the Company the amount of any taxes which IMCO or the Company is required to withhold
with respect to such shares of Common Stock.
17. Legend. Each certificate representing shares of Restricted Stock issued to the Executive shall bear the following legend, or a similar legend deemed by IMCO to constitute an
appropriate notice of the provisions hereof (any such certificate not having such legend shall be surrendered by the Executive upon demand by IMCO and so endorsed):
On the face of the certificate:
“Transfer of this stock is restricted in accordance with conditions printed on the reverse of this certificate.”
On the reverse:
“The shares
of stock evidenced by this certificate are subject to and transferable only in accordance with the terms of the IMCO Recycling Inc. Restricted Stock Award Agreement dated October 12, 2000, a copy of which is on file at the principal executive
offices of IMCO Recycling Inc. in Irving, Texas. No transfer or pledge of the shares evidenced hereby may be made except in accordance with and subject to the provisions of said Agreement. By acceptance of this certificate, any holder, transferee or
pledgee hereof agrees to be bound by all of the provisions of said Agreement.”
The following legend
shall be inserted on each certificate evidencing Common Stock issued hereunder if the shares were not issued in a transaction registered under the applicable federal and state securities laws:
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“Shares of stock represented by this certificate have been acquired by
the holder for investment purposes only and not for resale, transfer or distribution, have been issued pursuant to exemptions from the registration requirements of applicable state and federal securities laws, and may not be offered for sale, sold
or transferred other than pursuant to effective registration under such laws, or in transactions otherwise in compliance with such laws, and upon evidence satisfactory to IMCO Recycling Inc. of compliance with such laws, as to which IMCO Recycling
Inc. may rely upon an opinion of counsel satisfactory to IMCO Recycling Inc.”
IN WITNESS
WHEREOF, the Executive has executed this Agreement, and IMCO has caused this Agreement to be executed in its name and on its behalf.
| EXECUTIVE | ||
| Xxx X. Xxxxxx | ||
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| Name: |
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